Employment Discrimination

Transcription

1 Employment Discrimination Presented By: SM Jesse Chen, Esq., 陳成律师 Call: (412) Fax: (412) Address: 322 N. Shore Dr., Bldg. 1B, Ste. 200 Pittsburgh, PA This presentation is for general informational purposes only. It is not legal advice. It is not a substitute for legal advice or services. Consult an attorney if you have a specific question or concern. Legal advice will be provided only when an attorney-client relationship is established. An attorney-client relationship can only be established with me through a mutually signed legal engagement agreement.

2 How will this presentation help? For Employers: Protect your business from an employment discrimination lawsuit, and understand management best practices. For Employees: Know what s legal and illegal discrimination. Know your rights and responsibilities. Sources: - Statutes (laws from legislature e.g. Congress) - Case law (laws from court case decisions) - Examples and case studies Copyright 2018, Presented By: Jesse Chen, Esq., 陳成律师 Call: (412) , chen@chenesq.com

3 WHAT IS ILLEGAL EMPLOYMENT DISCRIMINATION? GENERALLY: - Race (e.g. East Asian) - Color (e.g. yellow skin) - National Origin (e.g. China) - Sex (e.g. female and more gender identity, family status) - Pregnancy - Religion (e.g. Buddhist) - Age (40-65) - Disability (e.g. blind) - Citizenship Status (e.g. US citizen, or green card holder) - Genetic Information (genetic test results, family medical history) Copyright 2018, Presented By: Jesse Chen, Esq., 陳成律师 Call: (412) , chen@chenesq.com

4 AND THERE S MORE: - Retaliation - Accommodations - Discipline - Termination - Equal Pay - Promotions - Workplace Romance - Disparate Impact - Background Checks - References MANT DIFFERENT LAYERS OF LAWS: - Federal: EEOC; Title VII, ADA, ADEA, etc. - State: PHRC; PHRA (Pennsylvania: Ancestry ) - Local: ACHRC (Allegheny County: Gender Expression, Guide Animal ) Copyright 2018, Presented By: Jesse Chen, Esq., 陳成律师 Call: (412) , chen@chenesq.com

5 REMEDIES: Very Costly - Civil Penalties - Back Pay - Licensure Authority Discipline - Front Pay - Reinstatement - Retroactive Seniority - Lost Benefits - Out-of-Pocket Expenses - Interest - Punitive Damages - Attorney s Fees - Emotional Harm Copyright 2018, Presented By: Jesse Chen, Esq., 陳成律师 Call: (412) , chen@chenesq.com

6 TEST: ILLEGAL DISCRIMINATION OR NOT? 1. PROTECTING PREGNANT EMPLOYEE S BABY? A female employee became visibly pregnant. Her supervisor stated that he cared about her baby and assigned her to work less physically active duties because he did not want her to over-exert herself and harm her baby. 2. NEUTRAL EMPLOYMENT TESTS? A large company required its job applicants to have a high school diploma and complete a general intelligence test so as to generally improve the overall quality of the workforce. Black employees sue. The court found that the company did not intend to discriminate against Blacks. 3. LANGUAGE PROBLEMS? An engineer was terminated after his supervisors became so frustrated that they could not understand him because of his foreign accent. The engineer was assigned to lower-level work and instructed to take an English as a Second Language class. Who wins? Employee wins on a sex discrimination claim. Who wins? Employees win on a race discrimination disparate impact claim. Who wins? Employee wins on a combined race, national origin and retaliation claim. Copyright 2018, Presented By: Jesse Chen, Esq., 陳成律师 Call: (412) , chen@chenesq.com

7 TEST: WHO WAS RIGHT? 4. CUSTOMER PREFERENCE? An airline rejected a male job applicant for a flight attendant position. The airline said that its customers preferred female flight attendants, and so to satisfy its customers preferences, restricted flight attendants to females only. 5. RACIAL PREFERENCES? A very prestigious university gave bonus points to only Blacks, Hispanics and Native Americans in its admissions evaluation. The stated policy was affirmative action and to promote diversity. Rejected White applicants sue. 6. RACIAL PREFERENCES, PART 2 A very prestigious university used race as a substantial weight in determining admissions, had a policy of enrolling a critical mass of non-white students, and rejected a White applicant. White applicant sues. Who wins? Employee wins on a sex discrimination claim. Who wins? White applicants win. The bonus points system is too mechanistic. Who wins? University wins. Diversity is a compelling interest when race is narrowly used. Copyright 2018, Presented By: Jesse Chen, Esq., 陳成律师 Call: (412) , chen@chenesq.com

8 Hiring Ads: GAME: SPOT THE PROBLEM Johnny O s is looking for a few more ladies to join our team! Copyright 2018, Presented By: Jesse Chen, Esq., 陳成律师 Call: (412) , chen@chenesq.com

9 Hiring Ads: GAME: SPOT THE PROBLEM wants to reach people ages 25 to 36

10 Hiring: EMPLOYERS: BEST PRACTICES - Hiring ads should only include job-related qualifications - Carefully word hiring ads - Beware of asking personal questions or making personal comments (e.g. family plans) - Beware of requesting sensitive information *(e.g. photograph) - Follow established hiring procedure - Hiring ad posting and distribution is scrutinized - Document interview results, send careful rejection letters Discipline: - Follow your own rules - Be clear and detailed, be consistent - Focus on work-related behavior - Investigations should be neutral, fact-based - Keep a record, keep documents - Respect employee s disciplinary history privacy

11 Workplace Environment: EMPLOYERS: BEST PRACTICES - Make sure you have all government-required posters and other documents to be provided to your employees - Maintain good relationships with employees - Angry employees more likely to complain/sue - Your other employees can help you even if one sues you - Listen more find out what your employees needs are, be extra careful if employee discusses sensitive needs (e.g. sick leave, parental leave, etc.) - Beware both lateral and vertical discrimination If an Employee Files a Complaint: - Never ignore the complaint - Call a lawyer immediately - Preserve complaining employee s employment file - Work with management and lawyer to inform other employees - Do not make public statements, do not argue or respond on your own

12 Hiring: EMPLOYEES: PROTECT YOURSELF - Ask for a copy of whatever you sign; keep your copies - Read carefully what you re signing, especially handbooks don t be afraid to ask for an explanation - Keep a record of communications between you and your prospective employer - You do not have to answer discriminatory questions* *National security/background checks Performance and Promotions: - Keep copies of your performance reviews - Understand performance and promotions policy - Keep track of how co-workers are promoted, and try to get answers in writing if you applied but were denied a promotion - Do not participate in discriminatory activity - Avoid using employer IT systems for personal use - Keep a diary of any patterns of discrimination, and store as dated material

13 Discipline: EMPLOYEES: PROTECT YOURSELF - Be careful what you say some issues can even involve police - Get copies of whatever the employer gives you; ask for a copy if you are not given one - Human Resources, and even your supervisor, are not your friend, their duty is to protect the employer s interests only - Be careful of what you are signing Termination: - Beware of your own attitude - Call a lawyer when you think you are facing trouble - Don t sign anything without carefully considering its effects - Keep a record of what you sign and receive

14 THE END ANY QUESTIONS? Presented By: SM Jesse Chen, Esq., 陳成律师 Call: (412) Fax: (412) Address: 322 N. Shore Dr., Bldg. 1B, Ste. 200 Pittsburgh, PA 15212